Is there a growing trend of cases attempting to create a backdoor to traditional standards of the Rule of Law through novel and retroactive liability schemes that dispense with notions of causation, traceability, and overall fairness? Several high profile “public nuisance”-styled cases make it seem that way, and the U.S. Supreme Court has a chance to take an important step to halt this assault on the Rule of Law. On September 24, the Court will hold a conference to decide whether to review a pair of cases that present an opportunity to resolve these issues.
The cases – ConAgra Grocery Products Co. v. California, No. 18-84, combined with The Sherwin-Williams Co. v. California, No. 18-86 – both involve appeals from opinions by the California Court of Appeal (with the California Supreme Court having denied review in each) applying novel tort theories to hold that paint companies committed a “public nuisance” when they truthfully advertised a then-lawful product—lead paint—long before the dangers of lead paint were discovered and well before the sale or promotion of lead paint was outlawed.
Here are the sets of issues up for review, as presented by the petitioners in each case:
From the Sherwin Williams petition: “(1) Whether, in conflict with decisions of the Supreme Court and the U.S. Court of Appeals for the 3rd Circuit, the First Amendment permits California to impose tort liability for truthfully promoting a lawful product that it finds to be hazardous in some uses; and (2) whether the due process clause allows a state to impose retroactive and grossly disproportionate public nuisance liability to inspect and abate millions of residences based on decades-old promotions without evidence that consumers relied on those promotions or that petitioner’s lead paint is in any residence.”
From the ConAgra petition: “(1) Whether imposing massive and retroactive “public nuisance” liability without requiring proof that the defendant’s nearly century-old conduct caused any individual plaintiff any injury violates the due process clause; and (2) whether retroactively imposing massive liability based on a defendant’s nearly century-old promotion of its then-lawful products without requiring proof of reliance thereon or injury therefrom violates the First Amendment.”
When deciding whether to review the cases next Monday, the Court may choose to address some or all of these issues as stated, or it may reframe its review around these issues based on how it identifies the most important concerns that make the cases worthy of consideration.
In an era when the U.S. Supreme Court now grants very few petitions for certiorari (lately less than 100 a year), the likelihood of any petition getting selected is very low. These cases should make the cut. They fit many of the categories that make review appropriate under U.S. Supreme Court Rule 10, including that: (1) the California Court of Appeal opinions conflict with First Amendment precedent in the U.S. Court of Appeals for the Third Circuit; (2) the cases represent a novel expansion of public nuisance law that needs to be controlled because it “has so far departed from the accepted and usual course of judicial proceedings . . . as to call for an exercise of th[e] Court's supervisory power”; and (3) the cases raise “an important question of federal law that has not been, but should be, settled by th[e] Court, or has decided an important federal question in a way that conflicts with relevant decisions of th[e] Court.”
It would be worth the Court’s time to take these cases, because these are not just a couple of cases deciding whether a couple of paint manufacturers have to pay some money. The cases involve important, broad principles of law affecting our overall system and determining the values within it that we can expect the courts to protect.
The California courts elevated a new theory of public nuisance above traditional standards for commercial speech protected under the First Amendment of the U.S. Constitution, accepted notions of constitutional Due Process, and other basic tenets of the Rule of Law—including that individuals must be “on notice” of, and capable of discovering, those things for which they could be liable at the time they decide whether to act in any particular manner before we as society can make them liable in the courts through tort law.
Our better-enlightened present selves cannot impose retroactive liability judging the lesser-informed individuals and unknowingly-harmful acts of earlier years. Fundamental to the liberal legal order is a belief that we do not punish people decades later for doing things that, at the time of their acts, were lawful and done not only without knowing but also without the ability to know that their actions could be harmful. The law does not allow a mutation of tort law to serve the preferences of a better-informed future society that has developed new expectations (because it knows things that were not known in the past) and now wishes someone could be made to pay.
Furthermore, even beyond their conflict with big constitutional and Rule of Law principles, the theories of public nuisance in these cases represent a basic distortion of the meaning of common law public nuisance so as to render that doctrine unrecognizable in this context. These cases do not involve invasions of public rights and dispense with traceability and other prerequisites to proving a public nuisance. To borrow the characterization offered by one group of distinguished legal scholars in an amicus brief in the Sherwin Williams and ConAgra cases, these cases represent a “remarkable departure from traditional tort principles” and are a “grotesque misapplication of tort principles.” That amicus brief—submitted on behalf of Professors Richard A. Epstein, Aaron D. Twerski, Donald G. Gifford, Henry N. Butler, John S. Baker, Jr., and Michael I. Krauss—details many of the major concerns with the California court’s approach and is highly recommended reading. (Other briefs and documents filed in these cases can be found on ScotusBlog (here and here) or at the U.S. Supreme Court’s official docket pages (here and here)).
More disturbingly, these cases are part of a mix of litigation floating around the judicial system that similarly threaten minimum fairness standards and unjustified expansion of common law doctrines. Courts and plaintiffs are asking public nuisance doctrine to do the work for novel and unprecedented expansion of tort liability in other areas of law too. For example, public nuisance has been argued as the way to make energy companies liable in court for all sorts of climate change impacts based on decades old behavior with slim claims of traceability and causation. These cases are the subject of the Federalist Society’s Originally Speaking: Climate Change & Common Law Public Nuisance debate series. Several courts (discussed in an earlier blog post, a podcast, and a blog update) have now questioned those regulation-by-litigation type claims as an improper expansion of tort liability and rejected them as beyond the court’s authority.
Review in the Sherwin Williams and ConAgra cases would allow the U.S. Supreme Court to clarify the law of public nuisance not just in these lead paint promotional claims but also clarify the limits of public nuisance doctrine more broadly. The Court has an opportunity to signal to the courts below that public nuisance cannot be a standardless vehicle for getting around important Rule of Law standards. For those and other reasons, we should hope that the U.S. Supreme Court grants the petitions next Monday and proceeds to review the merits of these cases this coming term.