PLF Liberty Blog

My Commonwealth Club talk about The Right to Earn A Living

Author: Timothy Sandefur

On Monday, I spoke to the Commonwealth Club in San Francisco about economic liberty and the law. They've posted the video of the talk on YouTube. The talk is also going to be broadcast on Bay Area public radio, but I haven't yet heard when that will be.

Illinois Supreme Court agrees with PLF—limits class action lawsuit abuse

Author: Timothy Sandefur

The Supreme Court of Illinois issued a decision a few days ago in Barber v. American Airlines, agreeing with PLF’s friend of the court brief and overruling an old precedent that allowed lawsuits to go forward even if the defendant admitted he was wrong and paid the plaintiff everything she wanted.

Government by scientists?

Author:  Damien M. Schiff

NRDC's Switchboard blog carried yesterday a story on a letter signed by some 1300 scientists to the US Senate, urging that body not to meddle with endangered species decisions but to leave those decisions to the experts.  NRDC's gloss on the letter states: "The message to Congress is loud and clear: when it comes to managing our country’s endangered wildlife, keep politics out of it."

I find this argument to be somewhat curious.  After all, the decision to have an Endangered Species Act at all is a political one; the decision to make species preservation "the highest of priorities" is a political one; the decision to protect the grey wolf, or the Delhi sands flower loving fly, or even the bald eagle---all political.  The scientists' letter therefore must proceed on the premise (false, in my view) that species preservation is something written into the fabric of sovereignty and good government, like the natural law, that cannot be changed but only implemented (interestingly, many legal leftists advocate a similar role for the uber-spurious pseudo-common-law doctrine of the public trust).

All of this is piffle.  It may even be dangerous.  For it seems that NRDC and the 1300 scientists believe that the People shouldn't be trusted with governing themselves; rather, they need "experts" to do it for them.  Whatever the merit of endangered species protection, I'm much happier that its mandates are ultimately in the hands of Brooks-Bros.-suited politicians than labcoat-sporting scientists.

Death Grip: Loosening the Law’s Stranglehold over Economic Liberty

Author: Timothy Sandefur

My friend Clint Bolick has just published his new book, Death Grip: Loosening The Law’s Stranglehold Over Economic Liberty, with the Hoover Institution. It looks like a great discussion of how previous Supreme Court decisions—especially the Slaughterhouse Cases—have ramifications in daily life for so many hardworking entrepreneurs today. And on a personal note, Clint is not only the nicest man in the world, but is the man who convinced me to go to law school in the first place! In fact, it was hearing his talk about the Colorado taxi case, Jones v. Temmer, while I was a college senior that persuaded me that I wanted to defend private property rights and economic liberty in court. So I’m glad to see that he starts out his book with a discussion of the case (and you can read that in the free excerpt on Hoover’s website).

This is the third of four new books about economic liberty and the law that have come out in just the past year. First came my Right to Earn A Living, and then Liberty of Contract, by David Mayer at Capital University—a marvelous short history of the law of economic freedom that manages to be at once brief and very thoroughly researched. And in May, Prof. David Bernstein, the nation’s leading authority on the Lochner case, will release his new book about that decision, called Rehabilitating Lochner. I have read the manuscript of the latter, and it’s great. It is very exciting to see so many solid works coming out on the importance of constitutional protections for economic liberty!

Judge Wanger deems salmon TRO and prelim. injunction motions to have been withdrawn

Author: Brandon Middleton

There will no injunction issued in the immediate future in the salmon biological opinion litigation.  Judge Wanger issued the following order this afternoon:

Based on the parties’ filings related to the Bureau of Reclamation’s projection that, due to hydrologic conditions, Action IV.2.1 will not control operations this water year, all moving parties agree that the pending motions for temporary restraining order and preliminary injunction, Docs. 538 & 590, and related motion to strike, Doc. 559, are moot. See Docs. 617 & 619-624. Those motions have been WITHDRAWN WITHOUT PREJUDICE. If Reclamation’s projections change, Plaintiffs may renew the motions for injunctive relief on shortened time.

SO ORDERED
Dated: March 30, 2011

/s/ Oliver W. Wanger
United States District Judge

How the Nanny State killed Mothering magazine

Author: Timothy Sandefur

Burdensome new regulations on toy makers have helped kill Mothering magazine after 35 years of publication. (Courtesy of Overlawyered.com, which if you aren’t already reading, you should.)

Jerry Brown’s redevelopment plans

Author: Timothy Sandefur

I was on Northern California’s Armstrong & Getty show again this morning to talk about Jerry Brown’s attempt to rein in the state’s 400+ redevelopment agencies—the government agencies whose job it is to steal your property through eminent domain and give it to private developers. You can listen here and you can learn more about that plan and how you can help at the Castle Coalition and at City Watch.

When will the South Mississippi Delta get congressionally promised flood relief?

Author:  Damien M. Schiff

Earlier this week, a federal court in Mississippi upheld the Environmental Protection Agency's veto of a much-needed flood control project in the Mississippi South Delta. Attorneys for PLF filed the suit on behalf of the Board of Mississippi Levee Commissioners, a state agency entrusted with protecting area residents from the ravages of Mississippi and backwater flooding. The vetoed flood control project would have entailed the construction of a single pumping station that would partially relieve the effects of flooding in the Yazoo Backwater area of the region. The Board had argued that EPA had no power to veto the project under the Clean Water Act because the project had obtained a special Congressional exemption from EPA veto in the early 1980s. Unfortunately, the court ruled Monday that the evidence proving that an exemption actually was obtained was inadequate.

The court's decision means that, at least for the time being, the residents of the South Delta will remain the only people in the Mississippi River watershed who do not have effective flood control in place. In the ruling's wake, Peter Nimrod, Chief Engineer of the Mississippi Levee Board, said, "This disappointing ruling is not going to stop the board from continuing to devote its full energies to securing adequate flood protection for the people of the South Delta region, as Congress mandated seventy years ago. That mandate remains in effect -- and so does our commitment to making sure it's fulfilled."

The Board is currently deciding whether to appeal the lower court's decision to the Fifth Circuit Court of Appeals.

Debate on the constitutionality of Obamacare

Author: Timothy Sandefur

I'll be debating Prof. Leslie Jacobs on the constitutionality of the Individual Mandate on April 13 at noon at the Sutter Club in downtown Sacramento. Tickets are $15, and I hope we'll have a lot of PLF's supporters there! You can learn more here.

Latest filings in salmon biop litigation

Author: Brandon Middleton

This afternoon in the salmon biological opinion litigation before Judge Wanger, plaintiffs Kern County Water Agency, Coalition for a Sustainable Delta, Metropolitan Water District, and State Water Contractors filed this document, followed by intervenor California Department of Water Resources' filing of this document.  Both sets of parties appear to agree with the Federal Contractors that pending requests for a temporary restraining order and preliminary injunction of restrictions within the salmon biological opinion are moot at present.  All parties have reserved the right to seek injunctive relief in the future should circumstances so warrant.

Oral argument in Wal-Mart class action reveals the case's fatal flaw

Author: Timothy Sandefur

Here is the transcript of the oral arguments in Dukes v. Wal-Mart this morning. There’s a particularly interesting question and answer on pages 24 and 25. That’s where Justice Sotomayor asks the plaintiffs’ lawyer what exactly it is that the plaintiffs want in this case, and the reason that’s interesting is because the plaintiffs in this case aren’t claiming that Wal-Mart has some company-wide discriminatory policy. In fact, Wal-Mart doesn’t have any central policy about hiring and firing and promotion and whatnot (except an explicit policy forbidding discrimination). Those decisions are made at the local level by individual managers. This is a good thing, because local managers know their employees best, know their customers best, and are in the best position to determine who deserves promotions and raises and who doesn’t. Having a giant corporation-wide policy would only gum up the works with needless bureaucracy. As I argue in the brief that PLF filed, Wal-Mart’s decentralized business model is just what makes it such a great success.

But that, the plaintiffs say, is just the problem. A decentralized policy, they argue, allows vaguely defined “discriminatory” social attitudes to somehow creep into the process. In other words, the plaintiffs are arguing that the lack of a policy that forces outcomes to be equalized is itself a form of discrimniation. As the late Prof. Richard Nagareda wrote, “on plaintiffs’ own evidence, the disparities at  Wal-Mart essentially  replicate  the disparities in pay and promotion along the dimension of sex across the United States economy as a whole. On plaintiffs’ account, this is precisely the point....  Indeed, an emerging  scholarly  literature urges a reconceptualization of  the meaning of discrimination under Title VII to encompass accounts in the nature of ‘structural discrimination’ on conduit-like lines.” Common Answers for Class Certification, 63 Vand. L. Rev. En  Banc 149, 167 (2010). In simpler language, the plaintiffs say that Wal-Mart’s work force looks like America—instead of like the perfectly equalized outcomes they’d rather see—and that is discrimination. This case is not about real discrimination; it’s about transforming the antidiscrimination laws into a tool for forcing America’s businesses to abide by liberal conceptions of “social justice.”

So on page 24, Justice Sotomayor asks the plaintiffs’ lawyer, “What would the injunction look like in this case?” and the lawyer answers,

The injunction would look like a series of remedial measures that would direct Wal-Mart to provide for detailed criteria by which to make pay and promotion decisions that are job-related in a way that hasn’t been true up until now.  It would provide for it to hold managers accountable for the decisions they make; it would ensure effective oversight of the—of these pay and promotion decisions....

In other words, the courts should force Wal-Mart to change its business model to have a centralized corporate control over hiring and promotion decisions throughout all its stores. That is not what class action lawsuits were devised for—indeed, it’s not what the justice system was devised for. As PLF’s brief argues, courts shouldn’t be in the business of deciding “social justice” disputes because—well, because there’s no such thing as “social justice.” As Friedrich Hayek explained in Law, Legislation And Liberty, this phrase really has no ascertainable meaning at all.

Veteran Supreme Court reporter Lyle Dennison describes his impressions of today’s oral argument at SCOTUS Blog: 

It took only a few minutes of argument Wednesday by a lawyer who sued discount retailer Wal-Mart over the way it allegedly treats its women workers for a potentially fatal flaw in that case to stand out boldly....  A basic claim of the case...that Wal-Mart has a policy of maintaining a common “culture” (the “Wal-Mart Way”) that ensures uniformity throughout its thousands of stores, yet company headquarters gives its local store managers unlimited discretion to decide workers’ pay and promotions, and the two together result company-wide in lower pay and fewer promotions for female employees.  As a logical proposition, that may seem somewhat self-contradictory....

Federal contractors agree that pending salmon litigation requests are moot

Author: Brandon Middleton

Updating yesterday's developments in the salmon biological opinion litigation, plaintiffs Westlands Water District and San Luis & Delta Mendota Water Authority have just filed this document, which states:

In light of Federal Defendants’ Notice to the Court of Allocation Increase (Doc. 617), and in light of the increased water allocation for south-of-Delta Central Valley Project agricultural water service contractors issued March 28, 2010, Plaintiffs Westlands Water District and San Luis & Delta Mendota Water Authority (collectively, "Federal Contractors") agree that their pending requests for a temporary restraining order ("TRO") and preliminary injunction to enjoin implementation of Reasonable and Prudent Alternative ("RPA") Action IV.2.1 are moot. Federal Contractors reserve the right to seek a TRO and/or preliminary injunction should hydrologic conditions change and RPA Action IV.2.1 constrain project operations in the future.

Federal Contractors thank the Court for devoting its time and attention to the TRO and preliminary injunction hearing conducted March 23-25, 2011.

No word yet if the other plaintiffs in the litigation will have anything to say on the mootness issue.

Elected officials and agency bureaucrats are to blame for regulatory drought--not federal judiciary

Author: Brandon Middleton

Via Aquafornia, I came across this article from the Silicon Valley Mercury News.  The article states that export restrictions "are the result of federal court rulings designed to protect endangered salmon and smelt in the delta."

This is not an accurate statement.  While the federal judiciary has overseen some of the past restrictions due to lawsuits that have been filed by environmental groups, it is misleading to blame the courts and not fault those who are ultimately responsible for restricting pumping.  The export restrictions are due to biological opinions written by the United States Fish and Wildlife Service and the National Marine Fisheries Service.  The agencies have written these biological opinions and the accompanying restrictions based on their regulatory authority under the Endangered Species Act, a law passed by your elected representatives in Congress.

I have an earlier blog post that addresses this subject in greater detail.

Tim the Lawyer on new federal ADA regulations

Author: Timothy Sandefur

I spoke this morning to Armstrong & Getty (click here to listen online) about new regulations for implementing the Americans with Disabilities Act—regulations that even the federal government admits will cost $100 million annually, and which they also admit is probably a lowball figure. Here are the new regulations. As you can see, these regulations are intended to expand the definition of “disability.” That term means anything that “substantially impairs a major life activity”—except that it doesn’t have to substantially impair, and it doesn’t have to be a major life activity:

Whether an activity is a “major life activity” is not determined by reference to whether it is of “central importance to daily life”….  “Substantially limits” is not meant to be a demanding standard…. An impairment need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered substantially limiting.

Businesses are required to provide “reasonable accommodations” to people with these disabilities—and, of course, even psychological disorders qualify as disabilities—but what is a “reasonable accommodation”? It’s whatever the judge says it is. The regulation says:

an accommodation is any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities. There are three categories of reasonable accommodation. These are (1) accommodations that are required to ensure equal opportunity in the application process; (2) accommodations that enable the employer’s employees with disabilities to perform the essential functions of the position held or desired; and (3) accommodations that enable the employer’s employees with disabilities to enjoy equal benefits and privileges of employment as are enjoyed by employees without disabilities.

Also, something is still a “disability” that requires “accommodation” even if the person takes medication or something that makes them perfectly fine. “Mitigating” acts by the disabled person must not be taken into account—except glasses. I’m blind without my glasses, but I’m not disabled because with glasses, I’m fine. But if you have “bipolar disorder” and you take medication for it, you’re still “disabled” and your employer must give you “reasonable accommodations.”

The costs of providing these “accommodations” can be extremely severe, and those costs are born by businesses, not by taxpayers. That is, they have to paid for out of money that might instead have gone to expanding business, innovation, creating jobs, and so forth—but now will instead go to litigation and other wasteful activities. The ADA is the most expensive burden ever put on businesses in this country, and it’s only getting worse. This regulation will become effective in May.

Supreme Court hears arguments in world's largest class action lawsuit

Author: Timothy Sandefur

The Supreme Court hears oral arguments in Dukes v. Walmart this morning. That's the discrimination case in which the plaintiff class is larger than the entire American military. The Court will decide a critically important question about how class action cases work.

Class actions were invented so that where a large group of people suffer the same injury from the same defendant, they can all bring their cases at the same time. So if a company makes glass bottles that break and a thousand people get hurt from the faulty bottles, they don't have to have s thousand separate cases about the same issue. But where the facts of each case are really different, the class action procedure is not appropriate. If everyone suffers different kinds of injuries under different circumstances, you shouldn't be able to ignore all those differences. Doing so would deprive the defendant of the constitutionally guaranteed right to defend itself against each charge. That's what's going on here--this is less like a real lawsuit than like an episode of Frasier. So PLF submitted this friend of the court brief in the case, arguing that the case shouldn't have been allowed to go forward as a class action.

We'll have more once the argument transcript becomes available.