President's weekly report — March 7, 2014
Economic Liberty Project — Nevada Says “NO” to Out-of-State Private Eyes
We filed our complaint this week in Castillo v. Ingram , challenging Nevada’s new rules that forbid private investigators from working in that state unless they have a brick and mortar office located within Nevada. Troy Castillo put in 29 years of service as a Palm Springs police officer before he retired and set up his own business as a private investigator. Unfortunately for him and everyone else that wants to gather and sell information in Nevada, that State now requires the investigator to maintain a physical office in the State. As our blog post points out, almost any kind of information gathering in Nevada now requires a license and a local office. Other than to limit competition, there is no discernible reason for such a requirement to be adopted. And this day and age, a desire to limit free, fair, and open competition is not a good reason, nor one that withstands constitutional scrutiny.
Environment — Sea Otters
The trial court issued an adverse ruling in Sea Urchin Commission v. Jacobsen, our challenge to the Fish & Wildlife Service’s failure to obey the law requiring it to keep translocated sea otters out of areas used for fishing and to exempt fishermen from severe penalties for trying to fish near the translocated otters. The court, however, held that the suit should have been filed over a decade earlier when the Service first asserted authority to ignore the law, rather than when it first began to actually ignore it. We are considering our responses to this rather odd ruling.
Free Enterprise Project — Tort Reform and “Substantive Unconscionability”
When is a contract so bad, so really, really bad, that a court shouldn’t enforce it? That is essentially the question the California Supreme Court asked the parties and amici to answer in supplemental briefs in Sanchez v. Valencia Holdings, LLC. As explained in our blog post, “unconscionablity” traditionally meant a contract that no sane person would sign and no decent person would accept. But, with courts more and more willing to rewrite contracts in order to cut one party or another some slack, the doctrine of “unconscionability” has been eroded to mean contracts with far less serious flaws. In California, one such “flaw” seems to be just about any contract with an arbitration clause that trial lawyers don’t like. This case involved a purchaser of a $54,000 Mercedes who didn’t happen to read the purchase contract with a big bolded arbitration clause. Rather than arbitrating the dispute, as he agreed, he is saying he can bring a class action suit against Mercedes because the arbitration clause that he didn’t read is unconscionable. We filed this amicus brief before the California Supreme Court explaining why the parties should honor the contract, as written. And in response to the Court’s recent request for further briefing on the meaning of “substantive unconscionability” we filed this amicus brief, essentially arguing that it means a contract must be really really bad — so bad that it “shocks the conscience” — before it can be tossed on grounds of unconscionability.
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California Sea Urchin Commission v. Jacobson
A federal statute requires the U.S. Fish and Wildlife Service to exempt lawful fishing activities from the broad prohibitions against the incidental taking of sea otters. This compromise between the Service’s desire to establish a new sea otter population and the fishing industry reflects Congress’s recognition that introducing sea otters into Southern California waters could severely impair the health and sustainability of local fisheries, threatening the livelihood of those who depend on them. The Service ignored this Congressional balancing of interests and PLF sued on behalf of sea urchin and abalone divers, lobster trappers, and other fishermen whose livelihoods are threatened by Service’s unilateral termination of protection for lawful fishing activities.Read more
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