In Other News On Obamacare Monday

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Robert Thomas

BY ROBERT THOMAS –  Today is the first 90 minutes of the epic three-day appellate arguments in the “Obamacare” Supreme Court cases. No doubt, coverage of the arguments will suck all the air out of the punditry room, and leave little space for discussion of anything else.

As it should be. Whatever the outcome, these arguments are going to be legendary, the pinnacle of appellate practice: the Super Bowl, the World Series, the World Cup, the Daytona 500, all rolled up into one. Who could not be fascinated.


Rather than compete for your attention with talk of takings, eminent domain, the fallacy of Williamson County, and the usual topics of this blog, we thought we’d take the low road instead.

Exhibit “A” is the complaint in Helmburg v. Alpha Tau Omega Fraternity, Inc., No. 12-C-57 (filed Jan. 23, 2012). It’s a case that reminds us of that bane of first year Torts class, Palsgraf v. Long Island Railroad, 162 N.E. 99 (N.Y. 1928), and the series of unfortunate events that started with fireworks, followed with an explosion, and ended up with Mrs. Palgraf greviously injured instead of going to Far Rockaway Beach. Except in Helmburg, it involved a bottle rocket, a fraternity, and the plaintiff’s fall off of a wooden deck. See paragraph 8 of the complaint.

We submit that the legal issue posed by paragraph 22 of the complaint — whether “the activity of underaged drinking and firing bottle rockets out of one’s own anus constitutes ‘ultra-hazardous’ activity which exposes both of these defendants to strict liability” — is surely more interesting than the reach of the Commerce Clause, Wickard v. Filburn, whether choosing not to buy a product or service is participating in commerce, and the Anti-Injunction Act.

More here, if you dare, from the Courthouse News Service.



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Robert H. Thomas is one of the preeminent land use lawyers in Hawaii. He specializes in land use issues including regulatory takings, eminent domain, water rights, and voting rights cases. He has tried cases and appeals in Hawaii, California, and the federal courts. Robert received his LLM, with honors, from Columbia Law School where he was a Harlan Fiske Stone Scholar, and his JD from the University of Hawaii School of Law where he served as editor of the Law Review. Robert taught law at the University of Santa Clara School of Law, and was an exam grader and screener for the California Committee of Bar Examiners. He currently serves as the Chair of the Condemnation Law Committee of the American Bar Association’s Section on State & Local Government Law. He is the Hawaii member of Owners’ Counsel of America, a national network of the most experienced eminent domain and property rights lawyers. Membership in OCA is by invitation only, and is limited to a single attorney from each state. Robert is also the Managing Attorney for the Pacific Legal Foundation Hawaii Center, a non-profit legal foundation dedicated to protecting property rights and individual liberties. Reach him at He is also a frequent speaker on land use and eminent domain issues in Hawaii and nationwide. For a list of upcoming events and speaking engagements.