President's weekly report — November 21, 2014

November 21, 2014 | By JOSHUA THOMPSON

Economic Liberty Project

The State of Florida moved to dismiss our lawsuit on behalf of The Crafted Keg, which seeks to overturn Florida’s irrational ban on 64-ounce beer growlers.  The motion argues, among other things, that the law does not violate our client’s due-process or equal-protection rights.  You can read more about the case at this blog post.

Free Enterprise Project

We obtained a mixed decision from the Pennsylvania Supreme Court in Tincher v. Omega Flex, Inc., in which we participated as amicus.  Our brief argued that the Pennsylvania Supreme Court should adopt Section 2 of the Third Restatement of Products Liability, which defines a “design defect” such that a manufacturer is liable for harm caused by its product only if the product’s risk of harm could have been reduced by use of a reasonable alternative design.  The court did not adopt Section 2, but did overrule an earlier case that was plainly in conflict with strict liability theories for a design defect.  Ultimately, the court refused to identify any sort of categorical rule that would allow citizens, businesses or the legal community to know how to conduct themselves moving forward.  More about the decision here.

Health Care

Last week, we filed an amicus brief in West Virginia v. Department of Health & Human Services.  In that case, West Virginia challenges  the Obama Administration’s refusal to enforce federal regulations effectively banning certain kinds of health insurance plans and its decision to instead leave it to the States to decide whether to enforce those unpopular regulations.  West Virginia claims that transfer to the States of political accountability for Obamacare’s weaknesses violates the Tenth Amendment.  Read this blog post to learn more about this case and our brief.


Today, we had oral argument before the California Court of Appeal in California Association for Recreational Fishing v. Department of Fish and Wildlife.  The case challenges unlawful regulations that threaten the ability of private hatcheries, and private fishing lakes and ponds, to remain in business.  The regulations also deprive the people of California—particularly urban children—of opportunities to fish.  The court of appeal will have 90 days to render a decision.  Read more about the case here.

We filed an amicus brief in the United States Supreme Court, in Century Exploration New Orleans, LLC v. United States.   The case centers on the Department of Interior’s unlawful attempt to change the terms of an oil exploration lease by fiat.  In our amicus brief, we urge the High Court to review the case in order to cabin the power of federal agencies to “regulate” by fiat, without going through the notice-and-comment protections afforded by the Administrative Procedures Act.

Property Rights

On Thursday, we filed our final brief in support of our petition for review in the California Supreme Court in Lynch v. California Coastal Commission.  In our brief, we underscore the importance of settling conflicts that exist among the courts of appeal on issues pertaining to property owners’ right to use, protect and maintain their properties — and their right to judicial review of unlawful permit conditions that burden those rights.  The supreme court will consider our petition in the coming weeks