- Artificial intelligence dodges a legal dart: “An Algorithm for Predicting Recidivism Isn’t a Product for Products Liability Purposes” [Eugene Volokh, Jim Beck]
- Powdered caffeine is hazardous stuff. Should Amazon be liable to the survivors of an Ohio 18-year-old who died after ingesting some bought online? [Associated Press/WKBN]
- Overview and critique of public nuisance theories of mass tort, including vaping, opioids, climate change, and other environmental [American Tort Reform Association]
- Knowledgeable review of NYC subway torts [Ross Sandler, CityLand (New York Law School]
- “1 law firm gets lion’s share of $112M in NFL concussion fees” [Associated Press/WKMG]
- Thanks Mark Pulliam for mentioning me in the course of reviewing a book that takes a rosier view of lawsuits than I do [Law and Liberty]
- “Ninth Circuit Dismisses Kids Climate Case for Lack of Standing” [Jonathan Adler, more; John Schwartz, New York Times; earlier here, here]
- Administration finishes replacing much-criticized Obama rule on Waters of the United States (WOTUS) [AgInfoNet, WilmerHale, earlier]
- Prop 65 mini-roundup: the California chemical-disclosure regime “has not been shown to provide benefits that justify its high cost.” [Michael Marlow, Cato Regulation magazine last summer] It has also created a $300 million/year industry that includes not a few shakedown artists [Cameron English, ACSH] Take two Tylenol and label them as hazardous chemicals or else [Masha Abarinova, Reason] Gas utility’s Prop 65 insert warning of exposure to, yes, natural gas [SoCalGas] From Cal Biz Lit, lists of 2019 settlements and consent judgments;
- Forcing insurers to renew risky policies: “California Politicians Double Down on Encouraging People To Live in Wildfire-Prone Areas” [Christian Britschgi]
- Exchange on the Price-Anderson Act and the liability regime it creates for nuclear power generation [John Cochrane; Tyler Cowen, Marginal Revolution] “Germany’s closing of nuclear power stations after Fukushima cost billions of dollars and killed thousands of people due to more air pollution.” [Alex Tabarrok]
- Two Cato Daily Podcast episodes hosted by Caleb Brown: why scaling back National Environmental Policy Act review of infrastructure projects “won’t have much of an impact on environmental quality.” [Peter Van Doren] Should Presidents wield unilateral power to lock or unlock use of federal land, as is conferred on them under the 1906 Antiquities Act? [Cato Daily Podcast with Caleb Brown and Jonathan Wood]
My new Bulwark piece: “He does not say what criminal law he thinks they have broken, despite the plain current legality under current law of operating refineries, at-pump gas sales and so forth. But note that Sanders’ language is not forward-looking — it’s retrospective. He’s not just talking about passing some new law and then arresting executives who proceed to violate it. He is talking about prosecuting past lawful behavior….
“America needs a politics with fewer authoritarian impulses, not more.”
Oh! Takoma! “Takoma Park, the liberal enclave just outside Washington known as the ‘Berkeley of the East,’ is debating whether to outlaw gas stoves, leaf blowers and water heaters. The proposal… would ban all gas appliances, close fossil fuel pipelines, and move gas stations outside city limits by 2045. The cost to the average homeowner could reach $25,000, officials wrote.” [Rebecca Tan, Washington Post]
- “The Climate Debate Should Focus on How to Address the Threat of Climate Change, Not Whether Such a Threat Exists” [Jonathan Adler, whose analysis of environmental law is often quoted in this space]
- “Grizzly Bears and Endangered Species Recovery” [Cato Daily Podcast with Brian Yablonski and Caleb Brown] “Property Rights as a Foundation for Conservation” [same, with Holly Fretwell and Brown]
- “If an environmentalist values the land more than ranchers do, then the environmentalist should get the lease.” [Shawn Regan, Reason; related on “diligence” regulations in federal resource leasing Robert M. Nelson, Regulation, Jan./Feb. 1983]
- “Litigation vs. Restoration: Addressing Louisiana’s Coastal Land Loss” [U.S. Chamber Institute for Legal Reform, earlier]
- Who will build the roads? Go ask Friedrich Engels [David Henderson, Econlib] Related: Market Urbanism Report podcast on road privatization and other topics with Robert Poole, Chris Edwards and others;
- “Florida Democratic Party adopts ‘rights of nature’ into platform” [Scott Powers, Florida Politics; see here, here, here, etc.]
“If a state like New York can bend and twist legal concepts like that of securities fraud to carry on an essentially political vendetta against a corporate enemy, how safe are other businesses?” My new Cato post reports on a judge’s scathing rejection of a case that should never have been brought, the New York Attorney General’s attempt to hang fraud charges on Exxon over its statements on climate change.
- I was part of an informative panel discussion of “Climate Change Litigation and Public Nuisance Lawsuits” organized by the Rule of Law Defense Fund [watch here] Podcast and transcript of an October update on state and municipal climate litigation with Boyden Gray [Federalist Society] And because it’s still relevant, my 2007 WSJ piece (paywalled) on how contingency fees for representing public-sector plaintiffs are an ethical travesty;
- New York securities case against ExxonMobil goes to trial [Daniel Fisher, Legal Newsline; earlier] At last minute, NY Attorney General Letitia James, successor to Eric Schneiderman, drops the two counts requiring proof of intent, which the state had earlier deployed to accuse Exxon of deliberate misrepresentation. Still in play is the state’s unique Martin Act, which allows finding fraud without proof of intent [Nicholas Kusnetz, Inside Climate News]
- Ninth Circuit panel hears “children’s” climate case, Juliana v. U.S. [Federalist Society podcast with James May, Damien Schiff, and Jonathan Adler; related commentary, James Coleman]
- Bernie Sanders doesn’t really need legal arguments for retroactive criminal prosecutions if he’s got Jacobin on his side, right?
- “Lawyers are unleashing a flurry of lawsuits to step up the fight against climate change” [Darlene Ricker, ABA Journal]
- Who’s backing Extinction Rebellion, the lawbreaking group that blocked intersections in Washington, D.C. and elsewhere this fall? “The answer, in part, is the scions of some of America’s most famous families, including the Kennedys and the Gettys.” [John Schwartz, New York Times]
Did you guess “Canada”? The Canadian federal elections agency “will consider any substantial public talk or advocacy about climate change during the weeks around the Oct. 21 general election as potentially a form of election advertising, and thus only legal if it complies with the Elections Act.” [J.J. McCullough, Washington Post]
Can the lawful sale of products be retrospectively declared a “public nuisance” and tagged with enormous damages, based on theories that the products caused harm after being used by third parties not in court? Before such theories succeeded in an Oklahoma courtroom against Johnson & Johnson over its promotion of opioid painkillers, they had been unsuccessfully deployed against the makers of guns used in crime, while another set of recent lawsuits attempts to deploy them in hopes of making the sellers of fossil fuels pay for the harms of climate change. Scott Keller, Houston Chronicle/Texans for Lawsuit Reform:
Public nuisance claims traditionally have been limited to conduct interfering with truly public rights. For example, courts for decades have recognized public nuisance claims brought by governments to remove impediments from their public highways or waterways. Even then, courts generally did not recognize such claims where a legislature or administrative agency had already regulated an industry. After all, if the political branches of government regulated an industry, then they were telling courts what did and did not qualify as an unlawful “nuisance.”
But a series of recent lawsuits wants courts to ignore these limits on public nuisance claims and obliterate entire industries. These lawsuits seek to massively expand what counts as a public right, and they want courts to destroy companies that are already complying with existing regulations.
Similarly: “’A loss on the public nuisance theory in the Oklahoma opioid public nuisance theory would have been a potentially devastating state court precedent for the climate change public nuisance cases now pending in state courts,’ said Richard Lazarus, a professor of environmental law at Harvard.” [Dino Grandoni, Washington Post]
Which raises a question: when trial lawyers were pitching Oklahoma politicos on the large sums to be gained by pursuing strained public nuisance theories against opioid makers, do you think they mentioned that the theories if embraced might work to shut down the locally popular oil and gas business?
Fossil fuel executives should be criminally prosecuted for the destruction they have knowingly caused. #GreenNewDeal
— Bernie Sanders (@BernieSanders) August 22, 2019
Vermont senator and presidential Bernie Sanders cites no criminal law that the executives violated, but he wouldn’t be the first champion of collectivism for whom the conviction was settled on first and the law found afterward. More: William Allison, Energy in Depth (in which I take issue with retroactive application of criminal law, and notions of “conspiracy” that do not make clear which underlying laws were involved).