Camera Lucida

October 8, 2006

Viva Sherwin Williams

Filed under: Constitutional law — CL @ 7:06 pm

In Ohio, the Sherwin-Williams Company has taken a novel approach to “public interest” lawsuits brought by the cities of East Cleveland, Columbus and Toledo, claiming damages for the use of lead-based paints in houses in those cities in past decades. Rather than relying on defenses in the state-court cases, the company has taken the offensive and has filed a separate lawsuit in Federal court, seeking to enjoin the state courts from considering these lawsuits on constitutional grounds. In the complaint, Cleveland-based Sherwin-Williams says,

“These trial lawyers, attempting to garner huge contingency fees, have allied with certain Ohio trial lawyers, to instigate this new wave of litigation by certain Ohio cities.”

According to the report in the Cleveland Plain Dealer,

“Sherwin-Williams is asking the court to prevent the Ohio cities from proceeding, arguing that it’s unfair to be held accountable for lawful actions that occurred long ago, before medical science could determine health risks associated with lead paint. It argues that the owners of property where lead paint has been allowed to deteriorate are responsible for injuries that result when that paint is ingested by children.

“Sherwin-Williams argues the public nuisance claims made by the plaintiffs ‘are arbitrary, impermissibly vague’ and so long after the fact that they deny the company due process.”

Although there are going to be several obstacles to this claim, including abstention doctrines, I find it refreshing that a company has considered that the 14th Amendment might actually be available to provide some relief to the tyrannical use of litigation in state courts to challenge the sale of products which were legal, beneficial, and sold in conformance with all state and Federal regulations at the time they were sold and applied.

The common wisdom among most constitutional lawyers is that the protections against oppressive state action afforded under the 14th Amendment are not available to protect corporations from product liability litigation under state law. I applaud this company’s willingness to challenge that position.

See Sherwin Williams sues three cities, Cleveland Plain Dealer, October 5


March 8, 2006

South Dakota’s effort at a challenge

Filed under: Constitutional law, Religion and law — CL @ 10:23 pm

Jack Balkin has this to say about the new law in South Dakota:

Many are now wringing their hands over South Dakota’s new abortion law, fearing that it means the end for abortion rights in this country. But the people who should really be cowering in fear are Republican political candidates. For South Dakota has begun the process of undermining the Republican Party nationally. . .

Most Americans may want abortions more difficult to obtain (as they imagine current circumstances) but they don’t want almost all abortions criminalized. If Republican presidential candidates announce their support for criminalizing abortions in the primaries in order to win the votes of the pro-life faithful, their Democratic opponents will be more than happy to remind the public of that position when the general election comes round. That, I predict, will help split the Republican coalition that has governed the country for years. . . By making it important for Republican politicians to take a stand — not on the relatively popular issues of partial birth abortion bans and parental notification requirements, but on the far less popular question of criminalizing abortion — South Dakota has managed to do what years of Democratic politics could not — create a wedge issue that will destroy the Republican party’s winning coalition nationally. 

    It seems to me that most Republican presidential candidates have consistently declared opposition to abortion. It also seems that it would be fairly easy for presidential candidates to dodge this particular issue – passing state legislation is, they would say, a matter for the states, and whether that legislation will stand is a matter for the courts to decide. And as Eugene Volokh has noted, the predicted trajectory for this legislation will be: invalidated by the District Court, affirmance by the Circuit Court, and certiorari denied by the U.S. Supreme Court. Not with a bang, but with a whimper.

    February 19, 2006

    Upcoming property rights decisions

    Filed under: Constitutional law — CL @ 10:07 am

    The most significant property rights case of the current term of the U.S. Supreme Court is to be argued on Tuesday, February 21. In the companion cases of Carabell v. U.S. Army Corps of Engineers and Rapanos v. United States, both of which are on appeal from decisions of the Sixth Circuit Court of Appeals, the petitioners are challenging the authority of the ACE to regulate wetlands well away from the navigable waters of the United States.

    Over the last ten years, the Federal government’s regulation of wetlands has grown, as the ACE has claimed very extensive authority in this area, which is typically regulated by the states. The ACE’s assertion of authority is premised on a statutory prohibition, contained in the Clean Water Act, against the discharge of any “pollutants, including dredged or fill material” into the navigable waters of the United States without a permit from the ACE.

    The Court decided in United States v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985) and in Solid Waste Agency Of Northern Cook County v. United States Army Corps of Engineers, 531 U.S. 159 (2001) that the regulations adopted by the ACE were a reasonable exercise of the authority conferred under the Clean Water Act. In the Solid Waste Agency case, however, the Court ruled that the ACE did not have the authority to regulate “isolated ponds”.

    LII has posted an extensive analysis of these cases and the issues they present, with links to several of the briefs, at The analysts note that these two cases will offer the Court the opportunity to refine or redefine the meaning of waters that are “adjacent” to navigable waters.

    And the Endangered Species & Wetlands Report has a web page including links to briefs and other resources relating to the case. (Pointer by How Appealing)

    January 13, 2006

    The constitution and presidential authority

    Filed under: Constitutional law, Politics — CL @ 4:36 pm

    The current debate about the power of the President to order the interception of communications between Americans and persons outside the U.S. has raised some interesting points about Constitutional interpretation. It is very commonly stated by conservatives and by those who support the President’s position that the Constitution “expressly grants that authority” to him. Of course, it does no such thing. It does provide that the President is the commander-in-chief of the armed forces, and the asserted power is said to derive from that grant of authority.

    Some of these are the same conservatives who regularly respond to the assertion of a constitutional right of privacy by demanding “show me where in the constitution it says that”. These people are no longer constitutional literalists. Now, they are suddenly willing to engage in a broad and liberal reading of the constitution, reading into its words powers and grants of authority that are not stated in its words.

    January 2, 2006

    Michigan property rights amendment

    Filed under: Constitutional law — CL @ 2:11 pm

    Michigan lawmakers adopt property rights was published in the Washington Times on December 16, 2005. This article reports on the overwhelming vote in favor of a ballot proposal to adopt a constitutional amendment in Michigan to prevent the use of eminent domain power in aid of private property owners.

    A selection: 

    “This is a solid constitutional amendment. Michigan has a bad track record of eminent-domain abuse, and the proposed amendment goes a long way toward stopping these practices,” said Scott Bullock, a senior lawyer at the Institute for Justice, a public-interest law firm.

    It is true that the 1981 Poletown decision was a bellwether for the principle that the courts will permit a wide-ranging use of the power of eminent domain to assist private developers. But Bullock makes no mention of the 2004 decision of the Michigan Supreme Court in Hathcock, which overturned the Poletown decision.

    See also: Mussoff, Adam, “The Death of Poletown: The Future of Eminent Domain and Urban Development after County of Wayne v. Hathcock”, published in the Michigan State Law Review in 2004, and found at SSRN at

    In Eminent domain abuse, an op-ed in the Washington Times by Timothy Sandefur, published on February 20, 2005, the author blamed the Poletown decision for a host of other abusive cases:

    “The Poletown decision led to an epidemic of eminent domain abuse. In 1999, the city of Merriam, Kan., condemned a Toyota dealership to sell the land to a BMW dealer instead.

    “That same year, Bremerton, Wash., condemned 22 homes to resell the land to private developers. In one notorious case, billionaire Donald Trump convinced Atlantic City, N.J., to condemn an elderly widow’s home so he could build a limousine parking lot.”

    The cited cases are:

    • Poletown Neighborhood Council v. City of Detroit, 410 Mich 616, 304 N.W.2d 455 (1981) 
    • County of Wayne v. Hathcock, 471 Mich 445, 684 NW2d 765 (2004)

    Blog at