Is litigation the answer to the CPSIA problem?

by Ted Frank on February 22, 2009

As anyone reading Walter Olson’s posts and Forbes coverage knows, CPSIA is a bad law, with disastrous effects on retailers and small manufacturers.

It certainly seems unfair that Congress can wipe out thousands of businesses with the stroke of pen. It’s certainly bad public policy: as I have written elsewhere, when legislatures act to retroactively disrupt settled expectations, the effects redound far beyond the targeted industries to create uncertainty throughout the economy.

It’s a jump, however, from “bad public policy” to “unconstitutional,” and I am concerned that I see many lay blogs asserting otherwise. Starting in the 1930s, the Supreme Court has given free rein to Congress and legislatures to engage in economic regulation, even when that regulation has dramatic effects on individuals. In cases such as Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 202 (2002), and Keystone Bituminous Coal Assn. v. DeBenedictis, 480 U.S. 470 (1987), the Supreme Court signed off on the constitutionality of far-reaching regulations, despite the large economic effect on property owners affected by the laws. While conservative justices and scholars have argued that such “regulatory takings” without compensation violate the Fifth Amendment, their respect for the rule of law and the actual text of the Constitution are pooh-poohed by Democrats as following an esoteric (and fictional) “Constitution in Exile” movement. There are, at most, four justices on today’s Supreme Court that would recognize the doctrine of regulatory takings; that number is not going to grow under President Obama (who has explicitly disclaimed any need to appoint judges who merely “follow the law”) and a Democratic Senate.

There exist public-interest law firms like the Institute for Justice that engage in litigation over economic constitutional rights–and, while they take donations, they do so without charging their clients money. I think litigation would be fruitless with the makeup of the current judiciary, but I acknowledge that IJ does do a good job of putting forward its principles, and often leveraging its litigation into political success.

But it concerns me even more to see a website recruiting victims of CPSIA to send money to a lawyer to bring a lawsuit. The attorney, involved, Michael Kushner, is a run-of-the-mill plaintiffs’ attorney without any demonstrated expertise in Fifth Amendment law, but has offered to take the case for a $25,000 retainer–which is certainly not enough to fully litigate this to the Supreme Court. There is questionable ethics, if not outright fraud, in asking parties to what is most appropriately filed as a Rule 23(b)(2) class action to “file forms” and send money to join–the whole point of a class action is that a representative of a class is named who will act on behalf of parties that haven’t signed up. Moreover, the Equal Access to Justice Act permits attorneys who have won constitutional litigation when the government’s position was not “substantially justified” to collect attorney’s fees. And note that at no point in Kushner’s website or the related blog recruiting members does he spell out a theory of legal victory.

Sending money to a lawyer to litigate the CPSIA is throwing good money after bad. That a law is unsound does not make it unconstitutional and vice versa. The road to solving the problem of the CPSIA is through Congress, either by making Democratic legislators see common sense, or electing legislators who aren’t so willing to sign off on bills constructed by trial lawyers to benefit themselves at the expense of society at large. Spending resources on doomed litigation diverts from the pressure needed to get Congress to change its mind.

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1 SSFC 02.22.09 at 1:14 pm

Fully agreed. Asking the Supreme Court to overturn CPSIA (or even to find it a taking) would be to ask the Court to overturn the entire regulatory framework of the federal government. It would be a revolution, and the Court is not revolutionary.

Worse, litigating distracts from the only efforts that will get this law modified or repealed, lobbying Congress, arousing journalistic interest, and blogging/twittering (which advances the two prior goals). Litigation also allows Congress to duck its responsibility.

2 Sarah Natividad 02.22.09 at 2:25 pm

I am not a lawyer, but I think litigation may be the ONLY way to get Congress to listen, even if it never gets to the Supreme Court. They’ve proven that they are perfectly willing to ignore polls, letters, and phone calls. How many letters and calls did they get over the stimulus bill? Didn’t the polls show the majority of the country against it? And still they passed it! What makes you think that an even larger volume of calls and letters and even public opinion on CPSIA will get them to pay attention?

No, lawsuits are the only things that get the attention of lawyers, and the vast majority of our legislators are lawyers.

3 Valerie Jacobsen 02.22.09 at 3:02 pm

I wish the Fifth and Tenth Amendments were not effectively lost to us at this time, but I suspect that the First Amendment would be readily accepted as an argument against the date-based banning of reading books for students, particularly in the absence of any known risk to health.

Thank you for writing about this. For all the costs that we small businesses are bearing, not only in terms of the direct costs of compliance but also in terms of the lost production time given to research and resistance, we really don’t need to lose more money to ineffective strategies.

4 Andrew_M_Garland 02.22.09 at 3:49 pm

Is it a violation of congressional or senate duties to vote on a bill without reading it? If reading a bill is not required, what would consititue a dereliction of office? Is the only remedy to vote the person out of office?

5 Ted Frank 02.22.09 at 5:02 pm

@2: Because most media outlets do not correctly understand the role of the judiciary, a losing lawsuit will be incorrectly portrayed in the media as the court’s validation of the public policy choice. I don’t see how that’s helpful.

@3: The First Amendment argument for book-sellers is more intriguing. But Leathers v. Medlock, 499 U.S. 439 (1991), a taxation case, suggests that neutral regulation that just happens to affect some types of speech financially is within the government ambit “unless the tax is directed at, or presents the danger of suppressing, particular ideas.”

@4: Is the only remedy to vote the person out of office?


6 Stella Baskomb 02.22.09 at 6:31 pm

“a jump, however, from “bad public policy” to “unconstitutional,”

Indeed. And so far anyway, it’s similarly not unconstitutional for the Congress to be obtuse.

It’s just . . . obtuse.

7 Valerie Jacobsen 02.22.09 at 7:34 pm

Ted Frank, I am very interested in your reply. I honestly have no wish to go to court on this, unless perhaps all other avenues fail and that door opens, but may I say that I wasn’t thinking in terms of the offense to me as a bookseller?

I was thinking of the infringement of the First Amendment rights of children. We don’t know what testing will show yet, but in the case of hundreds or thousands particular children’s titles, there are no copies but pre-1985 copies. If these copies are removed from libraries and suppressed in the marketplace, children will lose ready access to particular content–authors and ideas–in every venue where children tend to voluntarily pursue knowledge, including school libraries, public libraries, and children’s bookstores.

In the past, some courts have found that children’s free speech rights are infringed where even a handful of particular titles have been removed from a single library. It is hard for me to believe, then, that children’s free speech rights will not be infringed if every copy of a very long list of particular titles is suppressed by the State in the absence of any credible evidence of compelling interest.

I think of a particular library in northern Illinois which has the most exceptional children’s non-fiction collection within at least 150 miles. Removal of pre-1985 titles would decimate that collection, and the content loss would be missed by the children and could not be equally supplied by in-print books. Students would experience the loss in terms of their access to particular ideas, authors, and subjects.

In my experience as a homeschooling parent and a bookseller, children as young as eight or ten will sometimes develop admiration for particular authors or particular series. Those students, even at surprisingly early ages, will create lists, seeking every title, often using inter-library loan programs for this purpose.

I hope it doesn’t happen, but if the day comes that a student walks into a library and fills out an inter-library loan request and is told that his request cannot possibly be filled because 1) he is only ten years old and 2) that children’s book was last printed in 1975, I would say that the State has clearly infringed his first amendment right, no less than if his issue was the lesser loss of one particular copy at one particular library due to the aggression of one particular censor.

If I am compliant, a child’s loss will be similar in my bookstore. When a child asks me for a recommendation of a good biography on Patrick Henry, I would like to be honest with him. I have seen and reviewed most of the children’s biographies on Patrick Henry written over the last 60 years. I’m familiar with reading levels and content, so I’m prepared to answer this question with recommendations based on the child’s age, reading level and (assuming I know the child) other interests.

How is the child’s right to access information (which is implied with freedom of speech) served if I cannot recommend a more interesting biography printed in 1955 over a less interesting (possibly less appealing, possibly more biased) biography printed in 1987?

If I cannot supply a child with an honest, complete answer–or a copy of the book that he may then want to read, I suspect–again–that his right to information has been infringed.

Would the biggest hurdle be showing that decimation by date does effectively ban particular ideas and content? If so, I think I could make it over.

8 BG 02.23.09 at 9:02 am

I had bad dreams about these posts last night and what came to me was a lawsuit on the order of Miracle on 34th Street–the original. The court couldn’t really rule there is a Santa Claus and all the retailers would cry foul if there wasn’t a Santa Claus. This “toy” law does the same sort of thing and I can’t help but think that reality would be much less satisfying than the movie.

Perhaps the Library of Congress could weigh in the same way the Post Office did for Chris. I wonder if they plan to remove children’s books from the shelves.

I know we can’t teach State history in our homeschool without these old books. The text books are written for the state exam and there is so much interesting stuff to learn that we take the time to learn about our city and county as well as the state. It can’t be limited to how they chased J D Rockefeller out of town, a bit about Eliot Ness, a riot here and there and a walk up the street to see their graves. I doubt the texts tell the story about how Ivory Soap got its name but we read it in an old book.

9 William Nuesslein 02.23.09 at 9:15 am

Thank you, Ms. Jacobson, for your wonderful comment. But you did not show a real first amendment problem. Your argument for the Patrick Henry biographies would apply just as well to hard core pornography. The test from a public policy purpose, is what does the public gain from keeping terrific books from children?

Mr. Frank correctly says that the balance is a legislative matter, not a constitutional; matter. As of now the American people believe that lead is a great hazard in any form and at any concentration. They also believe in Creationism, UFOs, and all kinds of nonsense. If I understand Mr. Frank correctly, the battle against CPSIA has to be that CPSIA produces no benefits at great cost.

Mr. Frank recommends “voting them out.” But only 4 legislators voted against CPSIA, so we have to really clean house. There is no reason that we could find electable anti-CPSIA replacements.

10 Melvin H. 02.23.09 at 10:01 am

Mr. Nusslein, I think it could be a “constitutional matter” in a different form; why couldn’t there be a challenge under ex post facto? (As most–if not all–of the pre-1985 books were printed under conditions that were legal at the time they were printed. Imagine if, using the same logic, every building that had lead paint was ordered closed, sealed, and torn down; or, forced to remove the old paint at great expense, then had to test the new paint, walls, nails, conduits, etc. for lead and phthalates.)

11 Valerie Jacobsen 02.23.09 at 1:59 pm

Mr. Nusslein, would you be willing to explain your position further? Does the First Amendment offer any protection for a child’s freedom of access to information? (The freedom to access information is the logical corollary of freedom of speech.)

The First Amendment protects an individual, inalienable right. A citizen can preach or protest or hand out pamphlets on the street corner–and other citizens can join or listen or peacefully respond because this is a free country. Their right is inalienable, which means that they have it whether or not we could ever prove a public benefit.

The burden of proof must always be on the side of any attempt to infringe, which is why I used the words “compelling interest.”

I am asserting a child’s First Amendment rights as basic–but I would not say that they are all-encompassing. The First Amendment has never been interpreted as absolutely in force against every possible compelling interest. In fact, it was written in the hope that the unpleasant, unpopular, or evil abuses of a few would never be used to destroy the freedoms of all.

If you are concerned that I am saying that the First Amendment gives children a state guarantee of unrestricted access to all possible content, I do not for a moment believe it. The Bill of Rights restricts State aggression against freedom; it does not restrict the protection and care that most parents will exercise for their own children.

12 Mark Thompson 02.23.09 at 6:04 pm

The problem is that you can’t get a First Amendment violation unless there’s some sort of evidence that the restriction is in some way content-based, ie, that it’s intended to shut down a particular view point. There’s no reason to think that, especially since there is nothing to prohibit the republication of those books. In the cases to which you refer, books were removed from libraries because the locality specifically disliked the message those books conveyed; thus, the decision to remove the books was content-based and violative of the First Amendment.

The only argument I can see that is remotely plausible would maybe be a Takings Clause argument. But that is even a really tough road to hoe (although admittedly it’s not an area of law where I have any experience), and the only area of the law to which it would apply is the failure to exempt existing inventory. It wouldn’t have any impact on the testing, labeling, or certification issues.

13 Valerie Jacobsen 02.23.09 at 10:40 pm

The First Amendment does protect content-neutral speech from unwarranted government aggression. *Any* legislation that effectively impedes free speech and freedom of information must further a “substantial government interest” in the least restrictive way.

I believe that it would take a cold soul to claim substantial government interest in suppressing many pre-1985 books for children, or at least children aged 3-12.

The real effect of CPSIA is the suppression of masses of literary content; the result will almost certainly be a disproportionate loss of traditional conservative content. These things are not irrelevant to the First Amendment. (Interpretations are indispensable, but at the end of the road, the First Amendment will retain a distinct, concrete meaning.)

Would the First Amendment not apply to any of the following content-neutral legislation?
1. All newspapers must post a $1,000,000 bond before first publication.
2. No library can be open to the public unless a director with a doctorate in library science is present at all times.
3. No one may read books of any kind.
4. Reporters may not own cars or use public transportation.
5. CPSIA, which is about as far-fetched.

14 Tristan Benz 02.24.09 at 1:19 am

Fablous. Couldn’t agree more. Wrote an anti-class-action blog post with other reasons attached – mainly, why sue the government in hopes we “win,” only to have the money come from the already worn pockets of taxpayers. It doesn’t make sense – it’s like punishing ourselves on the heels of being punished, already, by Congress.

The best way we citizens can fight CPSIA is to ensure more and more citizens / parents understand the impact of CPSIA on their everyday lives (all the way down to undermining our authority, turning it over to a growing Big Brother) and work to get the will of We the people to eventually be heard by our public servants.

15 William Nuesslein 02.24.09 at 7:29 am

Ms. Jacobsen,

My position is that the correct argument against CPSIA is that there is no real benefit from it. The belief that incidental lead is a hazard is unfounded, as was the fear of silicone breast implants and power lines.

To see my point, suppose an earthquake. The authorities would have a duty to close libraries that had structural damage, even if they were safe when built.

16 Valerie Jacobsen 02.24.09 at 8:42 am

Thank you, Mr. Neusslein. I do agree that there’s no real benefit to it. (This radical thinks there’s not much real benefit to *most* legislation, but I haven’t seen much agreement in Congress or the courts yet.)

We can show that CPSIA is distinctly harmful, too. (One word that I really think we need to get out is that when you hurt business, you hurt children. Businesses are frequently run by parents and grandparents, and businesses emply parents and grandparents. When businesses are crushed beneath a load of regulation, children feel the weight of it.)

Even the folks who pushed for this are asking themselves and their senators and the CPSC why they don’t just get on the ball and exempt whatever isn’t a hazard to human health. (This is on the record in their letters.) Unfortunately, unbeknownst to most of them, that’s not the standard they were lobbying for last year.

17 William Nuesslein 02.25.09 at 6:12 am

Ms. Jacbonsen,

CPSIA is a legislative action with benefits and costs. You and Mr. Olson have documented well the high costs of the law, but you ignore the benefit side. The American people were outraged by lead-tainted Chinese toys. They know with some certainty that lead is as hazardous as Plutonium. The Congress saw a public heath risk of lead and acted accordingly. There is the problem. The congress said that the possible lead in some ink in some books is going to poison children. That is what CPSIA says. That is ridiculous, but there is no constitution requirement that Congress or the courts have intelligence.

18 Walter Olson 02.27.09 at 2:12 pm

For what it’s worth, my tiny, tiny role in advancing the currency of the phrase “Constitution in Exile” is explained here.

19 Joe Crews 02.28.09 at 6:32 pm

What will this do the the screenprinting industry. And where can I look for information concerning it. This has to change what types of inks and chemicals that are used

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