“In the lawsuit, the Coalition Against Distracted Driving and Stephen L. Joseph, as an individual, seek an injunction against Apple, Samsung, Google, and Microsoft, requiring those companies to pay $1 billion annually to fund an ‘effective and ongoing national public education campaign’ to educate drivers on the dangers of using smart phones and smart watches while driving.” The suit seeks to define the behavior at issue as a nuisance under California law. [Jared McClain, Washington Legal Foundation]
Lawyers Brendan and Nessa Coppinger moved into their row house in Washington, D.C.’s Capitol Hill neighborhood last September. They have now gotten a judge to agree to a temporary restraining order prohibiting their neighbor, Edwin Gray, from smoking or allowing anyone to smoke on his property. The Coppingers say the smoke is getting onto their premises through openings between the connected structures and “is harming them and their children”; they also want cash damages. The Gray family has owned the house next door for 50 years. [AP/ABC13 via ABA Journal; Washington Post]
Benjamin Freed at Washingtonian was kind enough to quote me at length making several points about this and similar litigation: 1) it would have been thrown out over most of the course of legal history because courts insisted that nuisance and similar claims (in this case couched as “negligence, nuisance, and trespassing”) exceed a de minimis standard and, in a claim for damages, required proof of actual harm going well beyond “you hit me with a molecule and that could kill me”; 2) smoking is uniquely disapproved nowadays which means some courts are willing to entertain de minimis claims that they would not for other common neighborhood nuisances; 3) if carcinogenic smoke drifting across property lines is to be stopped, both backyard grills and barbecues and common fireplaces are in trouble, at least if courts behaved logically — a very big if, of course. (It should be noted that the lawsuit includes some claims — such as that an unrepaired chimney at the Grays’ is contributing to the smoke problem — that might fit more readily into traditional legal categories.)
The temporary court order, incidentally, also bars the Gray family from allowing any smoking of now-legal marijuana in their house, which prompts this additional thought:
“It does make you wonder why conservative opponents of marijuana would bother to fight legalization in DC when instead they can let it go through and get rich suing over it,” Olson says.
Whole thing here.
Picking up on some provocative observations by Prof. Kenneth Stahl at Concurring Opinions, I’ve got a new post at Cato arguing that “libertarian analysis better explains what actually goes on in local government than does the standard progressive faith in the competence of government to correct supposed market failure.” Ilya Somin goes on to tackle the same question at Volokh Conspiracy. In a second post, Prof. Stahl explains why he thinks nuisance law, often cited by libertarians as a superior way of handling conflicts between adjoining land uses, doesn’t live up to such hopes in practice. Update: A third post by Stahl.
Ohio man sues forty townspeople for alleged frequent honking while driving by his house [Newser]
Two personalities often linked in this space, Prof. Richard Epstein and Popehat’s Ken White, were both on Reddit yesterday doing an interactive feature called “Ask Me Anything.” Epstein’s is here, and White’s is here.
More: Epstein in response to a question on originalism: “The style of interpretation used by the founders was much more sophisticated than the attention to text. Implied limitations on government, as through the police power, were part of the picture, as were implied protections of the government, as with sovereign immunity. My new book out later this year, The Classical Liberal Constitution, addresses these issues.”
In response to a question about his rule-utilitarian rationale for libertarian principles: “My view is that the deontological explanations tend to fail because they cannot account for such common practices at Intellectual Property, taxation or eminent domain. The theory has no way to deal with forced exchanges, which is what taxation and eminent domain are about.”
On libertarianism and pollution: “externality control is an essential party of the overall libertarian theory, and that means control of nuisances. … It is a case where it is easier to mischaracterize a system than to understand it. Nuisance law has many distinctive remedial features and at times requires collective enforcement of the basic norm against invasion. But there is nothing about the theory which says that the way to make people happy and prosperous is to choke them.”
Also: why the movie Body Heat got the Rule Against Perpetuities wrong, and why he’s not a fan of the German way to organize legal academia.
And Ken White answers questions about when to talk to the police; pro bono cases he’s proud of having helped on; what to say to someone who wound up going to law school in part because of his blog; how having his identity “outed” affected his law practice; and three kinds of crazy case that result in Popehat posts.
Canada: “A woman in Peterborough, ON is demanding $25,000 in compensation from her neighbour because her teenage son is playing basketball too loudly in his driveway. … [Her] lawyers said in a letter she is a professional writer who requires peace and quiet to earn her living and there’s a growing body of evidence that suggests environmental noise is linked to cardiovascular disease.” She has unsuccessfully sought to involve police, fire, and even the province’s environmental commissioner against the playing. [Sun]
- Pennsylvania Department of Labor launches probe on whether reality-TV show “Jon & Kate Plus 8” violates child labor laws [Pennsylvania Labor & Employment Blog, Hirsch/Workplace Law Prof via Ohio Employer’s Law]
- Dispute over termination of Navy aircraft contract called “Jarndyce v. Jarndyce of U.S. legal system” [WSJ Law Blog]
- Medical tourism, cont’d: “It appears that ‘we’re easier to sue’ is the uniquely American defense to medicine outsourcing.” [KevinMD]
- New Oklahoma law protects farmers from neighbors’ suits complaining of nuisance from farm activity [Enid, Okla., News]
- For unusually bad advice on how to save GM and Detroit, Michael Moore as usual comes through [Popehat]
- Lawyer reprimanded for telling party she should be cut up, shipped overseas [NJLJ, ABA Journal]
- Call for reform of UK laws banning press interviews of jurors after verdict [Times Online first, second articles and commentary]
- Coming soon: campaign against depiction of smoking in Raymond Chandler books, Edward Hopper paintings [CEI “Open Market”]
City governments, sometimes in league with private counsel working on contingency fee, “have started suing banks and mortgage companies to recoup their costs” on such services as “fire departments, police, code enforcement or even demolition” in blighted neighborhoods. “The lawsuits were filed in recent months under different theories, in state and federal court. Cleveland and Buffalo filed suits under public nuisance laws. Minneapolis’ suit was brought on consumer fraud grounds, while Baltimore took the unusual approach of filing suit in federal court under alleged Fair Housing Act violations.” Bank of New York says it was included in Buffalo’s suit against 39 lenders even though it neither originated nor purchased loans, but merely acted as trustee. (Julie Kay, “Empty Homes Spur Cities’ Suits”, National Law Journal, May 9).